Archive for December, 2011

Judge Temporarily Stays Washington ESA Pesticides Litigation

The Judge has stayed the Northwest Coalition v. EPA ESA pesticides litigation until March 30, 2012. The court’s stay order was issued after he read the parties’ joint status report, which stated that they were unable to reach agreement on how the case should proceed. The court’s order states that during the stay:

the parties shall confer, either in person or via telephone, to attempt to resolve as many issues as possible. If the parties are unable to reach a settlement, they shall file, on or before April 6, 2012, a Joint Status Report outlining: (i) the issues, if any, on which the parties have reached agreement; (ii) the precise issues to be decided by the Court; and (iii) a proposed briefing schedule. (3) On or after March 29, 2012, any party may move to extend the stay of this Matter….

Parties Unable to Agree on How to Conduct ESA Pesticides Litigation

Pursuant to court order, the parties in the ESA pesticides ESA litigation, Northwest Coalition for Alternatives to Pesticides v. EPA, in Washington state federal district court, submitted their joint status report on how the case should proceed. Unfortunately, the parties “were unable to reach agreement.” The government defendant and industry interveners wanted the case stayed for various reasons, while the plaintiff NGOs wanted an aggressive summary judgment briefing schedule. 

The joint status report stating parties’ position on how Washington ESA Pesticides litigation should proceed is attached below.


NMFS and FWS Propose New Policy on Implementing the ESA

The U.S. National Marine Fisheries Service and the U.s. Fish and Wildlife Service have proposed a new federal policy proposed to help clarify which species or populations of species are eligible for protection under the Endangered Species Act.  The Services’ notice of the proposed change explains:

USDA Asks NAS/NRC Pesticides ESA Review Panel to Consider New Questions

Representatives of the U.S. Department of Agriculture spoke at the first public NAS/NRC panel meeting on risk assessments for pesticides under the Endangered Species Act.  During their presentation, the USDA representatives asked the panel to “Seriously Consider the Following for ESA Consultations”:

●The consultation process MUST use the best available real world pesticide use and usage information (includes temporal & spatial patterns)

            –Authorized use rates on labels should not be the basis for use rate determination

            –Actual pesticide use data can be analyzed to map where and when toxicity exposure is greatest within a region (geographically depicted)

FESTF Offers to Help NAS Review of Pesticides ESA Risk Assessments

The FIFRA Endangered Species Task Force (FESTF) has sent a letter to the National Academy of Sciences offering its experience and expertise to the NAS/National Research Council review panel reviewing risk assessments of FIFRA-Regulated Pesticides for species regulated by the Endangered Species Act.  Their letter explains that FESTF

EPA Responds to Comments on Nano Registration

There were many comments submitted on EPA’s Proposed Decision Document for the Registration of HeiQ AGS-20 as a materials preservative in textiles.  EPA’s response to these comments is now public.

EPA’s response to comments on Nano registration is attached below.


EPA Publishes EDSP 21 Work Plan

EPA’s EDSP 21 Work Plan responds to language in the proposed fiscal year 2012 budget for the agency, which states that “In FY 2012, EPA will begin a multi-year transition from the Endocrine Disruptor Screening Program (EDSP) to validate and more efficiently use computational toxicology methods and high throughput screens that will allow the agency to more quickly and cost-effectively assess potential chemical toxicity” (President’s Budget FY2012).

In response, the EDSP21 Work Plan describes an approach for using computational or in silico models and molecular-based in vitro high-throughput (HTP) assays to prioritize and screen chemicals to determine their potential to interact with the estrogen, androgen or thyroid (E, A, or T) hormonal systems.

The Critical Role of Civil Servants

Historically, federal civil servants played a critical role in developing and implementing federal policy. The attached article in the Administrative Law Review, published by the American Bar Association in conjunction  with the Washington College of Law of the American University, sets forth in Section D on page 54  the critical role career federal employees had in the establishment of centralized regulatory review in the White House Office of Management and Budget.

Court Continues Settlement Stay in ESA Pesticides Litigation

On November 14, 2011, a federal court in San Francisco granted the parties’ motion to stay an ESA pesticides case until a status conference on February 10, 2012. The parties are ordered to file a status report by February 3, 2012. The purpose of the stay is to allow the parties more time to try to settle the case. This case involves the NGO plaintiffs’ allegations that EPA has violated the Endangered Species Act by failing to consult with NMFS and FWS on hundreds of pesticides.

The status report and court order are attached below.


EPA Conditionally Registers Nano Pesticide

In a 72-page document dated December 1, 2011, the U.S. Environmental Protection Agency has granted a conditional registration under FIFRA for a pesticide containing nanosilver as an active ingredient.  EPA summarizes its seminal decision as follows:

EPA is granting a conditional registration for the HeiQ Materials AG product named “HeiQ AGS-20” (hereafter referred to as “AGS-20”) under section 3(c)(7)(C) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The Agency’s basis for the conditional registration is that:

• AGS-20 contains nanosilver as an active ingredient and the nanosilver in AGS-20 is not in any currently registered pesticide;